I too conclude that—as applied in this case—the challenged administrative regulation (EAS 44-133.3) is invalid, but I reach this conclusion for reasons quite distinct from those of the majority opinion. In my view, the controlling federal statutes and regulations prohibit the state from reducing the AFDC recipients’ benefits on the basis of that portion of *896their mother’s income which—as both a legal and practical matter—is not actually available for the recipients’ support. Because the state regulation conflicts with applicable federal law, there is no need to reach the constitutional issues on which the majority opinion relies.
To begin with, there is no question but that Ms. Darces’ three youngest children, who are United States citizens, are properly entitled to receive AFDC benefits. In determining the amount of benefits they receive, federal law contemplates that the state will take into account the income of their caretaker, here their mother. (See, e.g., 42 U.S.C. § 602(a)(7).) In this case, however, the mother’s total income is not actually available for the support of the AFDC recipients because the mother is under a state-imposed legal obligation to support her three older, undocumented alien children as well as her three younger children. (Civ. Code, §§ 196, 242.) The governing federal regulations make it abundantly clear that only income which is “actually available” to the AFDC recipients—income which their caretaker has the “legal ability to make . . . available for [their] support and maintenance”—may properly be considered in reducing the recipients’ benefits,1 and the United States Supreme Court has invalidated a variety of state regulations that have improperly reduced AFDC benefits by “attributing” to recipients income that is not in fact available to them. (See, e.g., Lewis v. Martin (1970) 397 U.S. 552, 559-560 [25 L.Ed.2d 561, 567, 90 S.Ct. 1282]; Van Lare v. Hurley (1975) 421 U.S. 338, 346-347 [44 L.Ed.2d 208, 215-216, 95 S.Ct. 1741], See also Cooper v. Swoap (1974) 11 Cal.3d 856, 870-871 [115 Cal.Rptr. 1, 524 P.2d 97]; Waits v. Swoap (1974) 11 Cal.3d 887, 895 [115 Cal.Rptr. 21, 524 P.2d 117].) It seems clear to me that in light of these federal authorities, the state may not reduce the recipients’ benefits by “assuming”—contrary to both the legal and practical realities— that all of the mother’s income is available for the recipients’ support.2
In defense oj’ the state regulation, the Attorney General relies on a portion of the federal statute which declares that, in order to comply with federal law, a state program must “provide that in order for any child to be con*897sidered a dependent child, or caretaker whose needs are to be taken into account in making the determination under paragraph (7), or any other person whose needs should be taken into account in making such a determination with respect to the child or relative, such individual must be either (A) a citizen, or (B) an alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law.” (42 U.S.C. § 602(a)(33) [hereafter paragraph (33)].)
Read in conjunction with the applicable statutory references, however, paragraph (33) simply means that an undocumented alien cannot be either (1) a direct recipient of AFDC benefits or (2) what the federal regulations term an “essential” person whose presence in the recipients’ household is used in determining the size of the recipients’ “family budget unit.” Plaintiff in this case does not contend that her three undocumented alien children should be counted for either of those purposes. Contrary to the Attorney General’s contention, nothing in paragraph (33) suggests that income which is not, in fact, available to the AFDC recipients because it must legally be used to support an undocumented alien child, may nonetheless be considered income which is available to the recipients.3 Neither the legislative history of paragraph (33)4 nor any judicial authority supports the Attorney General’s reading of the provision, and such an interpretation would clearly fly in the face of the federal precedents prohibiting the reduction of benefits on the basis of fictional attributions of income.
*898In short, federal law has long provided that AFDC benefits may not be reduced on the basis of income which is not actually available to a recipient, and the state regulation as applied here violates that fundamental principle. Accordingly, I conclude that the judgment upholding the reduction in plaintiff’s benefits must be reversed.
Grodin, J., and Richardson, J.,* concurred.
Respondent’s petition for a rehearing was denied July 12, 1984. Lucas, J., was of the opinion that the petition should be granted.
Title 45, part 233.20(a)(3)(ii)(D) of the Code of Federal Regulations currently provides in relevant part: “Net income . . . and resources available for current use shall be considered; income and resources are considered available both when actually available and when the applicant or recipient has a legal interest in a liquidated sum and has the legal ability to make such sum available for support and maintenance. ” (Italics added.)
Actually, the state regulation at issue here does recognize that a portion of the mother’s income must go for the mother’s own support, and does not count that portion of her earnings as income to be deducted from the AFDC recipients’ grant. The regulation authorizes this reduction even though the mother—as an undocumented alien—is not counted as part of the “family budget unit.” The problem in this case arises simply because the state has not applied the same rationale—which, as noted above, is mandated by federal law—to the portion of the mother’s income which is not available to the recipient children because it must legally be used to support the undocumented alien children.
The Attorney General argues that if the state were to take into consideration the fact that a portion of the mother’s income must go to support the undocumented alien children, it would be “tak[ing] into account” the “needs” of the undocumented alien children in violation of paragraph (33). The argument is misguided. This portion of the mother’s income must properly be excluded simply because it is not available to the recipient children, not because it is being used to meet the needs of undocumented aliens. If the mother were legally obligated to support some other individual, the portion of her income devoted to such support would—in like manner—also not be counted as income to her recipient children because it would not be actually available to them. Indeed, as noted in footnote 2, ante, in the very regulation at issue here the state has recognized both the necessity and the propriety of excluding the portion of the mother’s income necessary for her own support, even though the mother is herself an undocumented alien.
Displaying a similar confusion, the trial court—in upholding the regulation—reasoned that if the mother’s support obligations to her undocumented alien children were taken into account, the resulting increase in the AFDC recipients’ net benefits would in effect constitute an aid payment to the ineligible undocumented alien children. Under that reasoning, however, any deduction from the mother’s income—for example, for transportation expenses incurred in earning the income—could be viewed as improper aid payment to an “ineligible recipient,” e.g., the local bus company. In truth, such deductions from income are necessary to insure that the recipients’ minimal benefits are reduced only by a sum that is in fact available for the recipients’ support.
Paragraph (33) is a 1981 codification of a long-standing administrative policy which limited eligibility for AFDC benefits to citizens or lawfully admitted aliens. (See 45 C.F.R. former § 233.50 [promulgated in 1973].)
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.